R v Rogerson; R v McNamara (No 15)
[2015] NSWSC 1892
•11 December 2015
Supreme Court
New South Wales
Medium Neutral Citation: R v Rogerson; R v McNamara (No 15) [2015] NSWSC 1892 Hearing dates: 4 December 2015 Date of orders: 11 December 2015 Decision date: 11 December 2015 Jurisdiction: Common Law Before: Bellew J Decision: See paragraph [23]
Catchwords: CRIMINAL LAW – Evidence – Accused charged with murder – Evidence of accused at shooting range before and after deceased’s murder – Whether evidence relevant Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Regina – Crown
Roger Caleb Rogerson - Accused
Glen Patrick McNamara – AccusedRepresentation: Counsel:
Solicitors:
Mr C Maxwell QC - Crown
Mr G Thomas - Accused Rogerson
Ms K Shead - Accused McNamara
Director of Public Prosecutions - Crown
Katsoolis and Co - Accused Rogerson
Kings Law Group - Accused McNamara
File Number(s): 2014/157408; 2014/156921 Publication restriction: Nil
JUDGMENT
INTRODUCTION
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By notice of motion filed on 13 November 2015 the accused Glen Patrick McNamara (“McNamara”) has sought a number of pre-trial orders. This judgment relates to the order sought in paragraph 9 of that motion which is in the following terms:
An order that evidence relating to the applicant’s attendance at the Condell Park Indoor Firearms Range on 13 May 2014 and 22 May 2014 be excluded pursuant to s. 137 of the Evidence Act 1995.
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As between the Crown and counsel for McNamara, the issue has been largely resolved. However, counsel for the co-accused Roger Caleb Rogerson (“Rogerson”) has made a number of submissions which require some issues to be determined.
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A Crown case statement has been filed in the proceedings. Its contents are set out in full in a number of previous judgments and accordingly I wil not repeat them. The Crown case statement sets out the context in which I must determine the present issues.
The evidence
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The notice of motion is supported by an affidavit of Abdullah Reslan, solicitor, affirmed on 28 November 2015. Annexed to that affidavit (inter alia) is a statement of Eleonora Mecham, the part owner of the Condell Park Indoor Firearms Range (“the firearms range”). Those aspects of Ms Mecham’s statement which are relevant for present purposes may be summarised as follows.
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On 2 September 2013 an incident occurred at the firearms range where a person committed suicide. As a consequence of that incident, Charles Moschoudis, who was then a barrister and was also a member of a shooting club which operated from the firearms range, was engaged by Ms Mecham to represent her and her husband at a Coronial inquest into that person’s death. Around the beginning of 2014, Mr Moschoudis came to the firearms range in the company of McNamara. He informed Ms Mecham that McNamara was assisting him with matters pertaining to the inquest.
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As a consequence, Ms Mecham had several meetings with McNamara. At one of those meetings McNamara said that he was interested in becoming a member of the club. He later completed the relevant prerequisites for membership.
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A member of the club is able to attend the firearms range and use pistols owned by the club. The club has approximately 54 pistols covering 14 different types of firearms. They include revolvers and semi-automatic pistols with calibres of 357, 38 special, 38 super, 9mm and .22.
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On 13 May 2014, McNamara attended the firearms range. Having provided his firearms licence details, he was issued with a Smith and Wesson 686 357 calibre magnum revolver. He spent about 10 minutes shooting.
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McNamara attended the firearms range again on the afternoon of 22 May 2014. On that occasion, he was issued with the same type of firearm and spent some time on the firearms range shooting.
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Photographs were taken from CCTV footage on each of these occasions.
The positions of the parties
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It was the Crown’s original intention to lead evidence of both occasions on which McNamara attended the firearms range by calling Ms Mecham to give the evidence outlined above, and by tendering the photographs. Counsel for McNamara initially raised an objection to that course, thus giving rise to the need to include paragraph 9 in the notice of motion. However when the matter came before me for hearing I was informed that an agreement had been reached between the Crown and Counsel for McNamara that the Crown would:
restrict the evidence to the oral evidence of Ms Mecham regarding the first occasion on which McNamara attended;
not lead evidence of the second occasion; and
not tender the photographs taken on either occasion
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Notwithstanding that this course was agreed to by Counsel for McNamara, counsel for Rogerson submitted the evidence of the events of 22 May (including the photographs) remained relevant and should be admitted. It was submitted, in particular, that in light of the duress which is to be asserted by McNamara as part of his defence, “his conduct on 22 May at the firing range doing something consistent with what he was doing on 13 May is relevant” (at T24 L2-3). Counsel submitted that such evidence be admitted into evidence notwithstanding the agreement which had apparently been reached between the Crown and counsel for McNamara. He submitted that any prejudice could be overcome by an appropriate direction.
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Counsel for Rogerson also submitted that in light of the agreement reached between the Crown and counsel for McNamara that the evidence of McNamara’s attendance on 13 May should be led, the photographs taken on that day should also be tendered.
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The Crown’s position was that if the relevance of the evidence sought to be relied upon by Rogerson could be demonstrated, the Crown would lead it. However, the Crown submitted that nothing had been advanced on behalf of Rogerson which established that the evidence was relevant. It was submitted, in particular, that the evidence was not relevant to any issue of duress.
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Counsel for McNamara submitted that if I were persuaded that the evidence of the attendance on 22 May was relevant, it would remain necessary to balance its probative value against the danger of unfair prejudice. In this regard, it was submitted that there was a clear potential for the jury to attach greater weight to that evidence than was warranted, to the point where the evidence could be misused. It was submitted, in particular, that the photographs gave rise to a real danger that the jury would impermissibly use them to reason (inter alia) that McNamara was a person who liked to shoot guns, who was able to shoot them, who was very familiar with them and who, as a consequence, was the kind of person who would shoot and murder the deceased. Counsel for McNamara took the same position in respect of the photographs taken on the occasion of McNamara’s first attendance at the firearms range.
Consideration
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McNamara’s attendance at the firearms range on 13 May 2014 was only a short time before the deceased was shot and killed. On the Crown case, McNamara was in the storage shed at the time of the killing. The fact that McNamara was at a firing range, practicing shooting a pistol at a target one week before the deceased was shot and killed, is clearly relevant. Counsel for McNamara properly accepted that this was so and withdrew her initial objection to it.
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However, the relevance of the evidence of McNamara’s attendance at the firearms range on 22 May is less clear. That attendance occurred after the murder of the deceased. Needless to say, the mere fact that an event occurs after an alleged offence does not, of itself, render evidence of that event inadmissible. The fundamental consideration is one of relevance having regard to the provisions of s. 55 of the Evidence Act 1995 (NSW) (“the Act”).
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In my view, evidence of McNamara’s attendance at the firearms range after the deceased’s murder is not (in terms of s. 55 of the Act) capable of rationally affecting, directly or indirectly, the assessment of the probability of any fact in issue in the proceedings. Even if I came to the view that the evidence was relevant, I would exclude it pursuant to the provisions of s. 137 of the Act on the basis that it would have the potential to be misused by a jury in the way suggested by counsel for McNamara. For these reasons any evidence of McNamara’s attendance at the firearms range on 22 May, including the photographs, should also be excluded.
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That leaves the question of the admission of the photographs of McNamara’s attendance at the firearms range on 13 May. Although, as I have outlined, the Crown proposes to lead evidence from Ms Mecham of that attendance, it is proposed to tender the photographs. Counsel for McNamara agrees with that course. Counsel for Rogerson presses for their admission.
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For the reasons that I have given, the evidence of McNamara’s attendance at the firearms range on that day is relevant. For the same reasons, the photographs are also relevant. The issue is whether or not they ought be excluded pursuant to s. 137 of the Act.
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There are four photographs in question which depict:
McNamara’s vehicle arriving at the car park of the firearms range;
McNamara entering the firearms range;
McNamara inside the firearms range and seemingly preparing to undertake shooting; and
McNamara engaged in shooting at a target within the firearms range.
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For the purposes of the present argument, the issue centres upon the photographs in (iii) and (iv). I have already outlined the basis on which the Crown seeks to lead the evidence of McNamara’s attendance at the firearms range on this day. The photographs add little or nothing to that evidence. More importantly however, the submission made by counsel for McNamara in respect of the potential for misuse of the photographs of McNamara’s attendance at the firing range on 22 May applies equally to those photographs taken on 13 May. In these circumstances the photographs should not be admitted.
CONCLUSION
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For these reasons, I make the following orders:
evidence of photographs of the attendance of McNamara at the firearms range on 13 May 2014 is excluded.
evidence of the attendance of McNamara at the firearms range on 22 May 2014, including the photographs pertaining to that attendance, is excluded.
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Decision last updated: 15 June 2016
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